25 January 2006

Rogers' confession and the cloak of confidentiality

The Rogers v TVNZ case (in which TVNZ was injuncted from screening the videotape in which Noel Rogers confessed to the murder of Katherine Sheffield and re-enacted the murder at the murder scene) is shaping up to be a fascinating case.
[Earlier: Rogers video]
The following comments on the case from a couple of my colleagues are republished with permission - and my own follow (UPDATED with further comment, 9/2/2006)
Steven Price:

WHY ROGERS IS WRONG
The issue was whether TVNZ could be restrained from broadcasting a video of an interview with Noel Rogers in which he confessed to the murder of Katherine Sheffield and re-enacted the murder at the murder scene. The video was ruled inadmissible by the Court of Appeal, on the grounds that Rogers had not properly waived his right to a lawyer when he re-enacted the murder. TVNZ obtained the video when the police gave it a copy, about six weeks after the video was made, and well before his trial.
The High Court (Venning and Winkelmann JJ) awarded the injunction against TVNZ. Amicus Julian Miles QC had supported this outcome.
Here’s why I think the judges got this wrong.
THEY BASED IT ON THE TORT OF INVASION OF PRIVACY – WHICH DOESN’T APPLY HERE
This was, I think, the first privacy injunction since the Hosking case was decided. I don’t think the elements are made out.

1 Did the video contain private facts? The fact of the video, and the fact that it contains a re-enactment and confession, have been widely reported. Rogers had made 22 confessions and admissions over the years, most of which were admitted in evidence at trial. I’m not clear that the video contained any extra information. If so, it would be easy to protect just that information rather than the whole video. Any other “private facts” would have to relate to his demeanour in the video – arguably it’s a stretch ordinarily to call this private facts. Anyway, in light of the publicity, and the extensive discussion during a public trial of his confessions, it seems difficult to
attribute to any extra facts on the video the quality of privacy that the CA
discussed in Hosking.
The judges simply said there was no evidence before it of publicity about the video. I’m not sure whether this is a legitimate complaint about a gap in the evidence or a failure on the part of the judges to take (judicial?) notice, during a quick-pace interlocutory hearing, of an obvious fact. (They are later quite happy to assume without evidence that whatever programme TVNZ will screen would “undoubtedly receive a widespread audience” and that TVNZ would use the video to impugn the jury’s acquittal of Rogers.) It doesn’t seem that the judges watched the video, or compared it with any information that had come out at trial. (I understand that TVNZ had permission to record the trial, which adds to the public nature of the
information revealed there.)
2 Did Rogers have a reasonable expectation of privacy? Well, he was with police officers, one of them pointing a camera at him, recording a confession which he’d freely agreed to give, with no real suggestion that he was mentally impaired, for use in a public trial against him, in a sensational case that had already attracted great
publicity. I think this comes way back in the catalogue of situations where one
might have reasonable expectation of privacy. In addition, he was largely repeating evidence that he’d already given and that was to be used against him.
The court said that his consent to the video (which he’d given half a dozen times, including in writing and on video, after being cautioned, and after explicity waiving his right to have his lawyer present) was flawed because he wasn’t expressly told that his lawyer had made an agreement with police for Rogers not to be interviewed without him being present and he therefore didn’t waive *that agreement.* Now, that may be relevant to the admissibility in court of the evidence. In fact, the CA ruled the video inadmissible because of it. It seems to me a very questionable decision given the very clear evidence of consent and waiver, and Elizabeth McDonald, the criminal law lecturer in the office next to me, thinks so too. But even if it’s a good decision, I think (contrary to the judges’ view) a pretty technical one,
and it doesn’t determine the outcome of a different legal question about whether Rogers had a reasonable expectation of privacy when he made the video.
The judges say he wouldn’t have expected the police to give the video to the media. Maybe so, but (a) I doubt he thought about it (b) if he did, I doubt he would have thought that police couldn’t give a video to the media (c) if he was savvy enough to form a view on the legality of the police giving the video to the media, he would presumably also have known that such videos can be, and sometimes are, obtained for broadcast through a search of court records and (d) I’m inclined to think his mind would be focused on the fact that the video might be used against him in a public trial, with its own attendant publicity. Did the fact that it was ruled inadmissible change that? The judges think so. But this rather depends on how you cast the reasonable expectation.
Is it reasonable to expect that an inadmissible confession would remain private? Maybe it is.

Is it reasonable to expect that if the media have got hold of a copy of such a confession before the trial won’t broadcast it afterward? Maybe not.
Is it reasonable to expect that an inadmissible video confession will remain private if the reasons it was inadmissible (to punish police misconduct and to ensure a fair trial) no longer apply once the trial is over? I wouldn’t have thought
so.

3 Would publicity have been highly offensive to an objective reasonable person? Again, it depends how you cast it. I think our objective reasonable person might be highly offended to learn that an inadmissible and incriminating video was being broadcast to the nation. On the other hand, it may not seem so highly offensive that the public were able to see a plainly cogent piece of evidence relating to a murder that remains unsolved despite two people’s confessions, to help them evaluate the workings of our justice and policing systems.
The judges say that Rogers has already withstood a public trial (without noting that a documentary would help the public understand that trial); that TVNZ would focus on the part of Rogers’ defence was that he confused reality with a dream (the judges rather play into this prejudice against Rogers because they don’t note the other, quite convincing, aspects of his defence); they conclude that in broadcasting the video, TVNZ would be highlighting evidence that Rogers hadn’t had a chance to meet at trial (without noting the broadcasting standards requiring balance); they say that TVNZ may be harassing an innocent man (without noting, of course, that the courts aren’t in the business of finding people “innocent”, and that a balanced documentary might equally produce a picture of the vindication of an innocent man, or a convincing revelation of a guilty man let free; or a at least an illustration of the workings of the justice system.
4 Was there legitimate public interest? Surely, yes. A woman has been murdered here. Two people have confessed; one has had his conviction overturned; another was acquitted. There are allegations of police misconduct. There seems no question that the video is relevant to that murder and the misconduct. The court of appeal excluded it for reasons that are controversial. There has been widespread coverage of the chain of events in this case, dating back 10 years.The media has covered this latest development as if the jury would have convicted if they’d seen the video. I can’t see how anyone can argue sensibly that seeing the video isn’t in the public interest – along with an informative and balanced discussion of the case, sure. I suspect that it was unfortunate that TVNZ conceded [para 71] that the video’s content wouldn't help in the scrutiny of the CA decision to rule it inadmissible. On the contrary, viewing the video would help the public to assess Roger’s voluntariness, the scope and willingness of his waiver of rights, particularly
with regard to his lawyer, the seriousness of the breach of his rights by the police, whether or not Rogers was indeed - as the CA found - “in a position of distinct vulnerability” the probativeness of his evidence, and it’s consistency with the rest of the evidence in the trial – so that we can get some idea of what was lost when the CA ruled it inadmissible.

THEY APPLY THE WRONG THRESHOLD FOR RESTRAINT
As the judges point out [para 26], the CA in Hosking laid down a high threshold for injunctions, which are only available if there is “compelling evidence of most highly offensive intended publicising of private information and there is little legitimate public concern in the information. In most cases, damages will be considered an adequate remedy.” And yet, bizarrely, at para [77] they apply the wrong test – not the test for an injunction, but the test for ordinary privacy infringement. Where’s the “compelling” evidence of “most” highly offensive conduct and “little” legitimate public interest?
The judges find that damages won’t be an adequate remedy. Of course they do. It’s easy to argue in any privacy case that damages won’t be adequate. From one perspective, they never are. But if anything, there’s less at stake in this case than most others. We already know the juicy bits. We know about the video. We know it contains a confession. We know it contains a re-enactment. The bulk of the damaging privacy infringement has already happened. It’s not as if the video contains information about his sexual identity or medical condition. The cat’s out of the bag, Noel. If there’s residual harm to your privacy that you can establish at trial – have some damages.
THEY KEEP REFERRING TO IRRELEVANT CASES
The judges draw at length from cases that concern search of court records, and in
particular Mahanga. These cases lay down the principles the courts are to apply if someone applies to search their records for access to documents or videos etc. That’s not what’s happening here. The media already have the video – they’re not making an application to the court to be allowed to see it. What’s more, the media have obtained it without unlawful behaviour on their part (the legality of the police behaviour in releasing it to them is, I think, not established yet, but isn’t relevant to the lawfulness of the media’s behaviour).
Anyway, the point is, there’s no good reason why the court’s principles developed in relation to statutory provision about the discretion to allow access to its own records should be transported to a situation where someone wants to publish something they’ve obtained themselves and are being restrained on grounds of privacy.
Even if the search rule principles are applied, then what about looking at the very recent CA decision in Jackson v Canwest? There, the CA dismissed what I think is a much stronger claim to privacy than Noel Rogers’. It upheld a HC decision allowing TV3 to obtain from court records - and broadcast - the confession of a man who was explaining that he had to kill his partner because she was the devil. At trial, there was uncontested psychiatric evidence that he was suffering from paranoid schitzophrenia at the time. He was psychotic, disturbed, and couldn’t understand his BOR warning. There was psychiatric evidence that the broadcast would impede his rehabilitation. But the court would have none of it. I’m not saying they’re wrong (though I wouldn’t have been inclined to criticise a decision that went the other way). But the case does show a pretty clear approach to the search rules in privacy cases – one very much based on openness - and the judges in Rogers didn’t discuss it.
There are also plenty of arguments that can be made on the basis of the Mahanga principles themselves that didn’t find favour with the judges. An emphasis on maintaining public confidence in the judicial system, for instance, may have taken the judges down the path of accepting that a TV company ought to be given the fullest opportunity to explain what had happened in a case that has clearly shaken public confidence.
Infuriatingly, the only US case cited was Nixon v Warner communications [para 33]. The most infuriating thing about this is that one of the shining beacons in US free speech jurisprudence is the principle that the media cannot be prevented in advance from publishing material they’ve obtained lawfully, unless the sky is about to fall in. (Remember the Pentagon Papers case? Where’s the reference to that?) The other infuriating thing is the ridiculous dicta quoted from Nixon to the effect that contemporaneous court reports are likely to be more fair and balanced than subsequent ones, because later reports are likely to be rendered lop-sided by
the selective release of particular exhibits. Where to start with this? Have you noticed that trial coverage is especially fair and balanced? Usually, it’s a reporter’s patchy take on some aspects of one day of a continuing hearing. Those aspects may or may not be the most significant. The story may or may not put them in context. The counter-arguments may or may not be reported. They may come up the next day, and be reported in a story that the original reader may or may not read. An overview at the conclusion of a trial is much more likely to be comprehensive. And that’s partly because it may be able to include facts that were kept from the jury or not discovered (or revealed) by the lawyers. Of course, this also overlooks the broadcasting standards requirements of fairness and balance.
The judges (and the judge in Nixon) do make a fair point that defendants should not have to bear the stigma of the unrestricted repetition of illegally obtained evidence. But again, Nixon was an access-to-court-records case.
THEIR BACK-UP GROUND IS UNCONVINCING
The judges had power under section 138 of the Criminal Justice Act to suppress “evidence adduced” or “submissions made” in criminal proceedings if it’s in the “interests of justice” to do so. They said that if it had proved necessary they would have made an order under this section.
But… the evidence wasn’t adduced. It was inadmissible. No, say the judges. This is a “restrictive, literal” reading of section 138. It was adduced during the admissibility hearing. I wouldn’t be so annoyed at this conclusion if I thought they’d reached it with proper reasoning. What we have here is an ambiguous provision. If so, under the Bill of Rights Act, it’s supposed to bear the meaning most consistent with rights of free speech. On the face of it, that’s the narrow “restrictive” meaning. But they don’t mention section 6 (or the section 5 balancing process, from which it might be possible to conclude that the expansive reading is demonstrably justified.) Nor do they mention the enormous jurisprudence on the companion section – section 140 – which is used for name suppression, and which you’d think might be analogous.
The starting point in those cases is open justice. The threshold is high.
THEY GIVE THE NZ BILL OF RIGHTS ACT SHORT SHRIFT THROUGHOUT
The CA in Hosking make it clear that the BORA pervades privacy law. It’s also supposed to pervade statutory interpretation. Although the judges set out the relevant principles, they form no part of their actual reasoning. This sort of judicial lip service is common, and it sucks. The judges should be noting free speech as the starting point, then identifying what they are aiming to achieve by limiting it. Would this limitation achieve it? Are there other less restrictive ways of achieving it? Is the benefit to Rogers’ privacy proportional to the harm being done to free speech? I’m frankly not convinced that any of the objectives that might be advanced here are really be served by the injunction when you take a good look at it:
Control of police misconduct (but publicity to the misconduct which led to demonstrably cogent evidence being excluded may help deter later misconduct, not hinder such control)
Protect Rogers’ privacy (but as discussed, there’s not much privacy left in the video; not, I’d argue, enough to outweigh the harm to free speech – besides which, he still has his remedy in damages if he can make out his case)
Reinforce respect for the processes of the court (ie in excluding evidence) – but those processes are not being breached by showing the video now – they only forbade its admissibility. A fair and balanced documentary may enhance respect for the court by properly explaining the rationale for the decisions that were made. My hunch is that in relation to Rogers, respect for the court is not at an all-time high.
Encourage others to give video evidence in future without being concerned about it being broadcast on TV – There’s something in this, I think, and Marie Dyhrberg gave evidence to this effect. Still, not all lawyers I’ve spoken to agree with her. And for the reasons I discussed earlier, publicity for a video is unlikely to be uppermost in the minds of people confessing – they must at least expect this evidence to be used against them in a public forum, so they’re hardly expecting complete privacy. Besides, the existing law is that they are sometimes made available under the search rules anyway. Moreover, a less restrictive way to meet this concern may be to regulate the police release of the videos.
…so I think TVNZ should win in the CA. But don’t forget that Julian Miles QC doesn’t. He even thinks that the judges could have founded their decision on the basis of contempt.

Nicole Moreham:

[W]ouldn’t it be better to analyse this case in terms of breach of confidence? The argument would go something like this:
1. The video and its contents (which I guess would be any ‘information’ contained in it which wasn’t already in the public domain) became confidential when the court ruled that it was inadmissible.
2. The officer who released it did so in breach of an obligation of confidence. (This could be an equitable obligation of confidence or a contractual one, depending on the officer’s employment contract).
3. Whether TVNZ can be held liable for taking the video as a third party depends on whether it knew when it took the video that the officer giving it to them was acting in breach of confidence (ie. AG v Observer Ltd etc).
It seems to me that by casting the action that way, the court would hone in on the real wrongdoing – if it is wrongdoing – namely the release by the police of a video which has been ruled to inadmissible. It would also avoid running rough shod over the privacy action which, in my view, is ill-suited to deal with an encounter which all of the parties thought was destined to be pored over in open court.

My own comments:

Much of the discussion of Rogers appears to be predicated on the notion that the Police disclosure of the video tape was somehow unlawful, inappropriate or sinister. From what I can discern, the proactive disclosure does appear to be odd. However, I’m not convinced that the starting point is that there is some sort of protective cloak that falls over the videotape or that its disclosure was illegitimate.
In my view, the tape could easily and legitimately have made its way into the public domain. It follows that Rogers claim of a reasonable expectation of privacy or confidence ground must fall away?
My reasoning is as follows:
1. The video forms part of the Police’s material from their investigation. It is trite that this material is covered by the Official Information Act. The presumption is that such material will be made available.
2. Of course, there are grounds on which the Police could withhold the information but it must be remembered these are permissive (in the sense that the Police can, but do not need to, rely on these grounds).
3. Such material was/is routinely made available to an accused under the OIA (and, latterly, for natural persons, the Privacy Act), although I am unsure whether or not the Police, as a matter of practice, routinely invoke the withholding grounds for such requests by other persons.
4. In general terms, the OIA itself does not contemplate that withholding grounds should be applied differently according to the identity of the applicant (although, in some cases, the public interest assessment may vary). If the material can be made available to an accused, there should be no reason why it should not similarly be made available to any person. (As an aside, I’ve routinely advised complainants in prosecution matters that, because of the OIA/LGOIMA, there is no guarantee their identify will not be disclosed.)
6. If the Policy were minded that the tape become public, they needed only to have someone request a copy (it’s unclear whether the disclosure of the tape was related to any request or was wholly proactive disclosure).
7. The only absolute restrictions on disclosure are set out in section 52:
s52. Savings—
(1) Nothing in this Act authorises or permits the making available of any official information if the making available of that information would constitute contempt of Court or of the House of Representatives.
(2) Nothing in this Act authorises or permits any person to make information available if that information relates to—
(a) the affairs of any estate under administration by Public Trust or in the Maori Trust Office; or
(b) The affairs of any person concerned in any such estate.
(3) Except as provided in sections 50 and 51 of this Act, nothing in this Act derogates from—
(a) Any provision which is contained in any other enactment and which authorises or requires official information to be made available; or
(b) Any provision which is contained in any other Act of Parliament or in any regulations within the meaning of the Regulations Act 1936 (made by Order in Council and in force immediately before the 1st day of July 1983) and which—
(i) Imposes a prohibition or restriction in relation to the availability of official information; or
(ii) Regulates the manner in which official information may be obtained or made available; or
(c) Any provision of any Order in Council made under the Commissions of Inquiry Act 1908 or of any other document by which a Royal Commission or commission of inquiry or board of inquiry is appointed.
7. Notably:
(a) The High Court’s reliance on the Police Regulations 1992 to augment the cloak of confidentially falls away because even if the Police Regulations imposed restrictions on disclosure, they are overridden by the OIA because they were made after 1983.
(b) Contempt of court comes into play (OIA doesn’t authorise disclosure which would amount to contempt of Court). But, in my view, the Court cannot pull itself up by it’s bootstraps by arguing the tape should be suppressed because it has “touched” the court process when the key reason behind suppression is not related to the court-process but rather the initial disclosure.
(c) I’m unaware of any other enactment which restricts disclosure?
(d) Section 52 takes out any argument about the Privacy Act applying (despite the Privacy Act having a mirror provision). It seems to be accepted that the OIA prevails over the Privacy Act. (Again, as an aside, has anyone done any thinking on whether the two Acts can be reconciled? This seems to be arguable. That is, although the privacy ground under the OIA is permissive, it is *required* to be interpreted consistently with the terms of the Privacy Act?)
I’ve put in an OIA request to test my analysis; however, despite the above, I’m not taking bets on being successful...

Ursula Cheer:

I’m not sure I followed Dean’s argument all that well. He appeared to be suggesting that the police have some kind of right to release information and it would be an easy thing to decide. I don’t accept that. In any event, here’s what I said about reconciling the OIA regime and the Privacy Act in Media Law in New Zealand, 5th edition, p 278:
"The Privacy Act does not apply unless the information is about the person requesting it. Other requests are subject to the Official Information Act and should be dealt with under that Act, which takes a contrasting approach to the Privacy Act because it is based on a principle that information should be made public unless there is good reason to withhold it.
…
Certainly the relationship between the two Acts is not well understood. If the official information requested includes personal information, the question for the public sector agency is: is withholding it necessary to protect the privacy of a natural person or a deceased natural person?( Official Information Act 1982, s. 9(2)(a).) If so, there may still be an overriding public interest in making the information available. If any personal information is released in this manner in good faith after being properly considered under the Official Information Act, there can be no breach of the Privacy Act."
In my view, in considering any request from a third party for the video, the police would have had to consider the very issues considered by the court – the privacy issue and the matter of public interest. That would by no means be an easy decision to make. But once released, as long as they dealt with the matter in good faith, there could be no complaint by Mr Rogers under the Privacy Act, but only for breach of privacy or confidentiality.
In any event, here the release was not under the OIA, and there appears to be strong evidence suggesting unlawful release. Would an OI request have been dealt with in good faith in such circumstances? Who knows?

My comments:

Ursula and others
I think you raise a good point, namely what is the nature of a public authority’s obligation in relation to the withholding grounds:
(a) public authorities are obliged to invoke the withholding grounds if they apply;
(b) public authorities are obliged to consider the withholding grounds but may make a judgement that they don’t apply or are overridden by the public interest
(c) public authorities may release information requested without consideration of the withholding grounds.
I’ve always considered position (c) applies (but am open to persuasion).
Section 15 is the primary decision-making obligation: “Subject to this Act, the [public authority] shall... [d]ecide whether the request is to be granted and, if it is to be granted, in what manner and for what charge (if any)...”. The withholding grounds arise under section 18: “A request made in accordance with section 12 of this Act may be refused only for one or more of the following reasons, namely [the various reasons and administration grounds for withholding information]”.
My interpretation is that section 18 is an enabling power or permissive provision, largely because of the inclusion of the word “may” and the presumption of availability. There is some case law (in another context) that suggests such wording does not give rise to any obligation to invoke such a power or to even consider whether it could be invoked (see Body Corporate 970101 v Auckland CC (2000) 6 ELRNZ 183 and Heretaunga Residents Assn Inc v Hutt CC 17/2/04, Wild J, HC Wellington CIV2003-485-1158; cf About Heritage v Wellington CC 4/6/03, Ronald Young J, HC Wellington CIV-485-841). I think this means a public authority is therefore entitled to release requested information without considering (either as a matter of policy or in the particular case) whether it is entitled to withhold the information.
I also think this accords with the practical reality. It would be chaos if public authorities were required to consider in each and every case whether any withholding ground applies. I suspect some public authorities just release anyways or do so without any real assessment of the withholding grounds (either the privacy ground or any of the other grounds).
That said, I’m open to a “special interpretation” for the privacy ground. It may be possible to read the Privacy Act and the OIA together to require the privacy ground to be invoked if the limitations in IPP11 apply. However, I think this requires a re-assessment of the relationship between s7 of the Privacy Act and s52 of the OIA, because presently it is clear, as you point out, that the OIA prevails and the privacy interests are assessed solely under the OIA.
One last point, I’m not sure I agree with the comments in your final paragraph: “But once released, as long as they dealt with the matter in good faith, there could be no complaint by Mr Rogers under the Privacy Act, but only for breach of privacy or confidentiality.” First, I’m not convinced there is any “good faith” prerequisite for the OIA to prevail over the Privacy Act; this applies automatically due to the savings provisions. Secondly, the section 48 immunity (which does, though, have a good faith prerequisite) would be a complete answer to any breach of privacy or confidentiality claim.

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